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Page 1 - DEF. NIKE, INC.’S PARTIAL MOT. TO DISMISS PLTFS’ FIRST AMENDED
CLASS AND COLLECTIVE ACTION ALLEGATION COMPLAINT
AMY JOSEPH PEDERSEN, OSB No. 853958 [email protected] KENNON SCOTT, OSB No. 144280 [email protected] STOEL RIVES LLP 760 SW Ninth Avenue, Suite 300 Portland, OR 97205 Telephone: (503) 224-3380 Facsimile: (503) 220-2480 DANIEL PRINCE, Cal. SB# 237112 (pro hac vice) [email protected] ZACH P. HUTTON, Cal. SB#234737 (pro hac vice) [email protected] FELICIA A. DAVIS, Cal. SB# 266523 (pro hac vice) [email protected] PAUL HASTINGS LLP 515 South Flower Street, 25th Floor Los Angeles, CA 90071 Telephone: (213) 683-6000 Facsimile: (213) 627-0705
Attorneys for Defendant NIKE, INC.
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION
KELLY CAHILL and SARA JOHNSTON,
individually and on behalf of others similarly
situated,
Plaintiffs,
v.
NIKE, INC., an Oregon Corporation,
Defendant.
Case No.: 3:18-cv-01477-JR
DEFENDANT NIKE, INC.’S PARTIAL
MOTION TO DISMISS PLAINTIFFS’ FIRST
AMENDED CLASS AND COLLECTIVE
ACTION ALLEGATION COMPLAINT
REQUEST FOR ORAL ARGUMENT
_____________________________________
Case 3:18-cv-01477-JR Document 47 Filed 12/10/18 Page 1 of 28
TABLE OF CONTENTS
Page
Page 2 - DEF. NIKE, INC.’S PARTIAL MOT. TO DISMISS PLTFS’ FIRST AMENDED
CLASS AND COLLECTIVE ACTION ALLEGATION COMPLAINT
LOCAL RULE 7.1 COMPLIANCE ............................................................................................... 7
PARTIAL MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED CLASS
ACTION COMPLAINT ..................................................................................................... 7
MEMORANDUM OF POINTS AND AUTHORITIES ................................................................ 9
I. Introduction/Summary Of Argument .................................................................................. 9
II. The Court May Dispose of Class Allegations at the Pleading Stage, Especially
Where Necessary to Prevent Discovery Abuse. ............................................................... 11
III. Plaintiffs Fail to Allege Adequate Facts to Support Their Class-Wide Equal
Pay Act Claims. ................................................................................................................ 14
A. Plaintiffs Fail To Identify The Relevant Comparators For Each Group
Of Allegedly Underpaid Women, Leaving Nike To Guess Which Men
and Women They Seek to Compare. .................................................................... 15
1. Plaintiffs have not identified the appropriate comparator pool for their
putative class. ............................................................................................ 15
2. Plaintiffs’ disparate allegations regarding their individual claims highlight
the absence of any common factual predicate for a class action. ............. 17
B. Nike Is Entitled To Assert Individual Defenses With Respect To Each
Putative Class Member And Each Alleged Comparator. ...................................... 19
C. Plaintiffs Fail To Identify How They Can Represent Women In
Different Job Titles, Levels, Families And Departments. .................................... 20
IV. Plaintiffs Fail to Allege Adequate Facts to Support Their Class-Wide
Intentional Discrimination Claims. ................................................................................... 23
V. Allowing Plaintiffs’ Deficient Claims to Proceed Will Inevitably Lead to
Discovery Abuse. .............................................................................................................. 25
VI. In The Alternative, The Court Should Strike Plaintiffs’ Class And
Representative Allegations. .............................................................................................. 26
VII. Conclusion ........................................................................................................................ 27
Case 3:18-cv-01477-JR Document 47 Filed 12/10/18 Page 2 of 28
TABLE OF AUTHORITIES
Page(s)
Page 3 - DEF. NIKE, INC.’S PARTIAL MOT. TO DISMISS PLTFS’ FIRST AMENDED
CLASS AND COLLECTIVE ACTION ALLEGATION COMPLAINT
CASES
Allender v. Univ. of Portland,
689 F. Supp. 2d 1279 (2010) ...................................................................................................15
Ashcroft v. Iqbal,
556 U.S. 662 (2009) ......................................................................................................... passim
Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters,
459 U.S. 519 (1983) .................................................................................................................11
Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007) ......................................................................................................... passim
Bennett v. Nucor Corp.,
656 F.3d 802 (8th Cir. 2011) ...................................................................................................25
Bureau of Labor & Industries v. City of Roseburg,
75 Or. App. 306 (1985) ............................................................................................................15
Corning Glass Works v. Brennan,
417 U.S. 188 (1974) ...........................................................................................................15, 19
DM Research, Inc. v. Coll. of. Am. Pathologists,
170 F.3d 53 (1st Cir. 1999) ......................................................................................................11
E.E.O.C. v. Md. Ins. Admin.,
879 F.3d 114 (4th Cir. 2018) ...................................................................................................16
E.E.O.C. v. Port Auth. of New York & New Jersey,
768 F.3d 247 (2d Cir. 2014)...............................................................................................16, 21
Edwards v. Oportun, Inc.,
193 F. Supp. 3d 1096 (N.D. Cal. 2016) ...................................................................................26
Gen. Tel. Co. of the Sw. v. Falcon,
457 U.S. 147 (1982) .................................................................................................................13
In re Text Messaging Antitrust Litig.,
630 F.3d 622 (7th Cir. 2010) ...................................................................................................25
Jones v. Bock,
549 U.S. 199 (2007) .................................................................................................................20
Case 3:18-cv-01477-JR Document 47 Filed 12/10/18 Page 3 of 28
TABLE OF AUTHORITIES
(continued)
Page(s)
Page 4 - DEF. NIKE, INC.’S PARTIAL MOT. TO DISMISS PLTFS’ FIRST AMENDED
CLASS AND COLLECTIVE ACTION ALLEGATION COMPLAINT
Kennedy v. Unumprovident Corp.,
50 Fed. App’x 354 (9th Cir. 2002) ..............................................................................12, 13, 20
Myung Ga, Inc. v. Myung Ga of MD, Inc.,
No. DKC 10-3464, 2011 WL 3476828 (D. Md. Aug. 8, 2011) ...............................................26
Noel-Batiste v. Virginia State Univ.,
No. 3:12CV00826-HEH, 2013 WL 499342 (E.D. Va. Feb. 7, 2013)......................................21
Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75 (1998) ...................................................................................................................23
Ott v. Mortg. Investors Corp. of Ohio, Inc.,
65 F. Supp. 3d 1046 (D. Or. 2014) ..........................................................................................26
Peak v. Topeka Hous. Auth.,
78 F.R.D. 78 (D. Kan. 1978)....................................................................................................17
Picus v. Wal–Mart Stores, Inc.,
256 F.R.D. 651 (D. Nev. 2009)................................................................................................13
Ramirez v. Baxter Credit Union,
No. 16-cv-03765-SI, 2017 WL 1064991 (N.D. Cal. Mar. 21, 2017) ......................................27
Rasmussen v. Apple Inc.,
27 F. Supp. 3d 1027 (N.D. Cal. 2014) .....................................................................................27
Raytheon Co. v. Hernandez,
540 U.S. 44 (2003) ...................................................................................................................24
Reynaga v. Roseburg Forest Prods.,
847 F.3d 678 (9th Cir. 2017) ...................................................................................................23
Rizo v. Yovino,
887 F.3d 453 (9th Cir. 2018) ...................................................................................................22
Rose v. Goldman, Sachs & Co.,
163 F. Supp. 2d 238 (S.D.N.Y. 2001)......................................................................................18
Sams v. Yahoo! Inc.,
713 F.3d 1175 (9th Cir. 2013) .................................................................................................20
Sanders v. Apple Inc.,
672 F. Supp. 2d 978 (N.D. Cal. 2009) .....................................................................................26
Case 3:18-cv-01477-JR Document 47 Filed 12/10/18 Page 4 of 28
TABLE OF AUTHORITIES
(continued)
Page(s)
Page 5 - DEF. NIKE, INC.’S PARTIAL MOT. TO DISMISS PLTFS’ FIRST AMENDED
CLASS AND COLLECTIVE ACTION ALLEGATION COMPLAINT
School Dist. v. Mission Ins. Co.,
58 Or. App. 692, 700 (1983) ....................................................................................................23
Sidney-Vinstein v. A.H. Robins Co.,
697 F.2d 880 (9th Cir. 1983) ...................................................................................................26
Smith v. Bull Run School Dist.,
80 Or. App. 226 (1986) ............................................................................................................15
Stanley v. Univ. of S. Cal.,
178 F.3d 1069 (9th Cir. 1999) .................................................................................................15
Teamsters v. United States,
431 U.S. 324 (1977) ...........................................................................................................23, 24
Teodoro v. Allstate Fire & Casualty Ins. Co.,
No. 217-cv-02135-APG-VCF, 2018 WL 1786818 (D. Nev. Apr. 13, 2018) ..........................13
Weinreb v. Xerox Bus. Servs., LLC Health & Welfare Plan,
323 F. Supp. 3d 501 (S.D.N.Y. 2018)......................................................................................21
Wood v. City of San Diego,
678 F.3d 1075 (9th Cir. 2012) .................................................................................................24
STATUTES
29 U.S.C.
§ 206................................................................................................................................. passim
§ 216(b) ......................................................................................................................................9
42 U.S.C.
§ 1981.......................................................................................................................................23
§ 2000e ............................................................................................................................. passim
Or. Rev. Stat.
§ 652.220.......................................................................................................................... passim
§ 659A.030 ....................................................................................................................... passim
RULES
Fed. R. Civ. Proc. 8 ..........................................................................................................................7
Fed. R. Civ. Proc. 12(b)(6) ..............................................................................................................7
Fed. R. Civ. Proc. 12(f) ..............................................................................................................7, 26
Case 3:18-cv-01477-JR Document 47 Filed 12/10/18 Page 5 of 28
TABLE OF AUTHORITIES
(continued)
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Page 6 - DEF. NIKE, INC.’S PARTIAL MOT. TO DISMISS PLTFS’ FIRST AMENDED
CLASS AND COLLECTIVE ACTION ALLEGATION COMPLAINT
Fed. R. Civ. Proc. 23 ..............................................................................................................7, 9, 13
ARTICLES
Easterbrook, Discovery as Abuse, 69 B.U.L.Rev. 635 (1989).......................................................11
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Page 7 - DEF. NIKE, INC.’S PARTIAL MOT. TO DISMISS PLTFS’ FIRST AMENDED
CLASS AND COLLECTIVE ACTION ALLEGATION COMPLAINT
LOCAL RULE 7.1 COMPLIANCE
In compliance with Local Rule 7-1(a), counsel for Defendant Nike, Inc. has conferred in
good faith with plaintiffs’ counsel regarding this Motion, and the matters contained herein, but
the parties were unable to resolve their dispute.
PARTIAL MOTION TO DISMISS PLAINTIFFS’
FIRST AMENDED CLASS ACTION COMPLAINT
Defendant Nike, Inc. (“Defendant” or “Nike”) moves to dismiss plaintiffs’ class and
collective action claims from the First Amended Class and Collective Action Allegation
Complaint (the “Complaint”) pursuant to Federal Rules of Civil Procedure 8 and 12(b)(6), or, in
the alternative, to strike these claims pursuant to Federal Rule of Civil Procedure 12(f).
Nike moves to dismiss plaintiffs’ class claims for violations of the Federal Equal Pay Act
(First Cause of Action), the Oregon Equal Pay Act (Fourth Cause of Action), and intentional
discrimination in violation of Title VII (Third Cause of Action) and the Oregon Equality Act
(Sixth Cause of Action) on the ground that, under Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), plaintiffs fail to plead sufficient factual
matter to state any facially plausible class or collective action claims. In the alternative, Nike
moves to strike from the Complaint those class and collective action claims on the ground that
plaintiffs’ proposed class definition is so overbroad that they cannot possibly maintain a class or
collective action on the facts alleged.
Case 3:18-cv-01477-JR Document 47 Filed 12/10/18 Page 7 of 28
Page 8 - DEF. NIKE, INC.’S PARTIAL MOT. TO DISMISS PLTFS’ FIRST AMENDED
CLASS AND COLLECTIVE ACTION ALLEGATION COMPLAINT
This Motion is supported by the attached Memorandum of Points and Authorities and
exhibits thereto, and such further oral and documentary evidence as may be presented at or
before the hearing on this Motion.
Dated: December 10, 2018 Respectfully submitted,
/s/ Felicia A. Davis
Daniel Prince, Cal. SB# 237112 (pro hac vice)
Zach P. Hutton, Cal. SB#234737 (pro hac vice)
Felicia A. Davis, Cal. SB# 266523 (pro hac vice)
PAUL HASTINGS LLP
515 South Flower Street, 25th Floor
Los Angeles, CA 90071
Telephone: (213) 683-6000
Facsimile: (213) 627-0705
Amy Joseph Pedersen, OSB No. 853958
Kennon Scott, OSB No. 144280
STOEL RIVES LLP
760 SW Ninth Avenue, Suite 3000
Portland, OR 97205
Telephone: (503) 294-9408
Facsimile: (503) 220-2480
Attorneys for Defendant NIKE, INC.
Case 3:18-cv-01477-JR Document 47 Filed 12/10/18 Page 8 of 28
Page 9 - DEF. NIKE, INC.’S PARTIAL MOT. TO DISMISS PLTFS’ FIRST AMENDED
CLASS AND COLLECTIVE ACTION ALLEGATION COMPLAINT
MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION/SUMMARY OF ARGUMENT
Nike moves to dismiss plaintiffs’ class and collective action claims1 for alleged
intentional discrimination in violation of Title VII and the Oregon Equality Act, and alleged
violations of the Federal and Oregon Equal Pay Acts. Plaintiffs have not alleged any factual
predicate that makes these claims plausible, or warrants imposing upon Nike and the Court the
considerable burden and expense of litigating their overbroad claims. Accordingly, plaintiffs’
claims should be dismissed.
Plaintiffs purport to bring class-wide claims alleging intentional sex discrimination and
Equal Pay Act violations on behalf of almost every female employee at Nike’s world
headquarters, but they plead conclusory allegations and generalizations, rather than facts, to
support the claims.2 The proposed class claims are extremely broad. Plaintiffs challenge every
conceivable employment practice short of hiring and firing: job placements, job levels, starting
salary, salary increases, bonuses, equity grants, ratings, and promotions. Compl. ¶ 182. For each
claim, plaintiffs purport to sue on behalf of “[a]ll female current and former Nike employees at
Nike Headquarters . . . in a salaried, corporate position that was or is a lower-level position than
Vice-President,” excluding only female employees in Nike’s Retail Stores, its Finance and
Human Resources departments, and Nike’s lawyers. Compl. ¶¶ 165-166 and 176-177. The
proposed class would span thousands of female employees in hundreds of disparate job
1 Plaintiffs assert their Federal Equal Pay Act claim as a proposed “opt-in” collective action
pursuant to 29 U.S.C. § 216(b), and assert their Title VII and state law discrimination claims as a
proposed “opt-out” class action, pursuant to Rule 23 of the Federal Rules of Civil Procedure.
For the sake of simplicity, Nike refers to both sets of claims as “class” claims for purposes of this
Motion.
2 Nike does not move on the remaining “disparate impact” claims (Second and Fifth Causes of
Action), although Nike denies the allegations contained in and relating to those claims.
Case 3:18-cv-01477-JR Document 47 Filed 12/10/18 Page 9 of 28
Page 10 - DEF. NIKE, INC.’S PARTIAL MOT. TO DISMISS PLTFS’ FIRST AMENDED
CLASS AND COLLECTIVE ACTION ALLEGATION COMPLAINT
categories, from Security, Communications, and Product Design to Logistics, Manufacturing,
and Technology. It also would include female employees in almost every job level, from those
in administrative support roles to senior directors. Each of those women have different
educational backgrounds, qualifications, experience, skills, performance histories, job functions,
levels of responsibility, and job duties. Plaintiffs fail to plead facts that suggest the unique
positions they held or the wrongs they claim to have suffered are typical of every other woman at
Nike’s headquarters.
Allowing the proposed class claims to proceed would subject Nike to discovery
encompassing nearly its entire female headquarters’ workforce and their corresponding male
comparators (which would be thousands of additional employees), along with tens of thousands
of individualized personnel and pay decisions. Plaintiffs plead no factual predicate that makes it
plausible that all class women at Nike’s headquarters share anything in common (other than their
gender), let alone that they suffered a common harm on a theory susceptible to common proof.
That is precisely the type of pleading abuse that the U.S. Supreme Court rejected in Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009).
Separately, plaintiffs’ claim for disparate treatment in violation of Title VII and the
Oregon Equality Act requires proof that all putative class members experienced intentional
discrimination – that Nike intentionally placed them in lower job levels, paid them less, rated
them lower and promoted them less frequently because of their sex. Plaintiffs plead no factual
predicate for that claim, other than facially gender-neutral policies that, as a matter of law,
cannot form the basis of an intentional discrimination claim.
The Complaint fails to satisfy the pleading standards in Twombly/Iqbal, and allowing
plaintiffs to proceed with their facially insufficient, unbounded claims would invite discovery
Case 3:18-cv-01477-JR Document 47 Filed 12/10/18 Page 10 of 28
Page 11 - DEF. NIKE, INC.’S PARTIAL MOT. TO DISMISS PLTFS’ FIRST AMENDED
CLASS AND COLLECTIVE ACTION ALLEGATION COMPLAINT
abuse from the outset. Accordingly, the Court should dismiss plaintiffs’ class-wide pay equity
and disparate treatment claims. In the alternative, the Court should strike plaintiffs’ class and
collective action allegations on the ground that the proposed class definition is so overbroad that
plaintiffs cannot plausibly maintain a class or collective action on the facts alleged.
II. THE COURT MAY DISPOSE OF CLASS ALLEGATIONS AT THE PLEADING
STAGE, ESPECIALLY WHERE NECESSARY TO PREVENT DISCOVERY
ABUSE.
The policy driving the Supreme Court’s decisions in Twombly/Iqbal is simple: Before
the defendant is forced to undertake the considerable burden and expense of defending against a
plaintiff’s claims, particularly in large and ill-defined class actions where the potential for abuse
is greatest, the plaintiff must provide necessary factual predicates to support his or her
allegations. As the Court explained:
It is no answer to say that a claim just shy of a plausible
entitlement to relief can, if groundless, be weeded out early in the
discovery process through “careful case management,” given the
common lament that the success of judicial supervision in
checking discovery abuse has been on the modest side. See, e.g.,
Easterbrook, Discovery as Abuse, 69 B.U.L.Rev. 635, 638 (1989)
(“Judges can do little about impositional discovery when parties
control the legal claims to be presented and conduct the discovery
themselves”). And it is self-evident that the problem of discovery
abuse cannot be solved by “careful scrutiny of evidence at the
summary judgment stage,” much less “lucid instructions to juries”;
the threat of discovery expense will push cost-conscious
defendants to settle even anemic cases before reaching those
proceedings. Probably, then, it is only by taking care to require
allegations that reach the level suggesting [the factual predicate]
that we can hope to avoid the potentially enormous expense of
discovery . . . .
Twombly, 550 U.S. at 559 (citations omitted); accord Associated Gen. Contractors of Cal.,
Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 528 n.17 (1983) (“Certainly in a case of
this magnitude, a district court must retain the power to insist upon some specificity in pleading
before allowing a potentially massive factual controversy to proceed.”); DM Research, Inc. v.
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CLASS AND COLLECTIVE ACTION ALLEGATION COMPLAINT
Coll. of. Am. Pathologists, 170 F.3d 53, 55 (1st Cir. 1999) (affirming motion to dismiss; “[T]he
price of entry, even to discovery, is for the plaintiff to allege a factual predicate concrete enough
to warrant further proceedings, which may be costly and burdensome.”) (emphasis in original).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court,” using its “judicial experience and common sense,” “to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678-
79. The complaint must contain more than “labels and conclusions,” “a formulaic recitation of
the elements of a cause of action,” and “naked assertion[s] devoid of further factual
enhancement.” Id. at 678 (internal quotation marks omitted) (quoting Twombly, 550 U.S. at 555,
557). In short, the complaint must contain sufficient facts to “nudge[] [the] claims across the line
from conceivable to plausible.” Twombly, 550 U.S. at 570.
To that end, Iqbal establishes a two-step inquiry to determine whether a complaint meets
the requisite pleading standard. First, the court should “identify[] pleadings that, because they
are no more than conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at
679. Second, the court should consider whether any factual allegations that remain “plausibly
give rise to an entitlement to relief.” Id. If they do not, the court should dismiss the complaint
for failure to state a claim. See id.
The need for careful scrutiny of the pleadings is especially acute when the plaintiff
alleges overbroad class claims. In Kennedy v. Unumprovident Corp., 50 Fed. App’x 354, 355
(9th Cir. 2002), for example, the Ninth Circuit rejected the plaintiff’s argument that the district
court inappropriately dismissed class claims on a motion to dismiss, rather than allowing the case
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CLASS AND COLLECTIVE ACTION ALLEGATION COMPLAINT
to proceed to class certification. The Ninth Circuit echoed the Supreme Court: “[I]t is
sometimes ‘plain enough from the pleadings to determine whether the interests of the absent
parties are fairly encompassed within the named plaintiff’s claims.’” Id. (citing Gen. Tel. Co. of
the Sw. v. Falcon, 457 U.S. 147, 160 (1982)).
Iqbal, Twombly and their progeny do not provide the only support for dismissing overly
broad and impermissibly pled class actions early in a case. In Kennedy, the Ninth Circuit also
highlighted the district court’s obligation under Federal Rule of Civil Procedure 23(c)(1) “to
determine ‘as soon as practicable’ whether the proposed class satisfies Rule 23’s requirements.”
Kennedy, 50 Fed. App’x at 355; Picus v. Wal–Mart Stores, Inc., 256 F.R.D. 651, 655 (D. Nev.
2009) (“[A]s a matter of law, a class cannot be certified . . . it would be a waste of the parties’
resources and judicial resources to conduct discovery on class certification. . . . Although it
would be improper to require a plaintiff to establish she can maintain a class before she attempts
to do so, it would be appropriate to dismiss the class allegations if the plaintiff does not allege
facts sufficient to make out a class.”); Teodoro v. Allstate Fire & Casualty Ins. Co., No. 217-cv-
02135-APG-VCF, 2018 WL 1786818, at *4-5 (D. Nev. Apr. 13, 2018) (granting defendant’s
motion to dismiss class claims with prejudice where the complaint made clear that plaintiff’s
putative class could not be certified as a matter of law because individual issues would
predominate).
Here, plaintiffs’ equal pay and disparate treatment causes of actions suffer from at least
two fatal deficiencies: plaintiffs’ ill-defined class is far too broad to plausibly or practicably be
represented by plaintiffs, and plaintiffs have alleged no factual predicate that demonstrates the
putative class all suffered the same supposed harm.
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CLASS AND COLLECTIVE ACTION ALLEGATION COMPLAINT
III. PLAINTIFFS FAIL TO ALLEGE ADEQUATE FACTS TO SUPPORT THEIR
CLASS-WIDE EQUAL PAY ACT CLAIMS.
Plaintiffs’ federal and state Equal Pay Act claims require them to plead and prove that
they perform work “which requires equal skill, effort, and responsibility . . . under similar
working conditions” as their male counterparts (under federal law, 29 U.S.C. § 206(d)(1)), or
that their work is “of comparable character, the performance of which requires comparable
skills” (under state law, ORS 652.220).3 If that threshold is met and plaintiffs establish the
existence of a pay difference, no violation exists if the difference is “based in good faith on
factors other than sex.” ORS 652.220.4
Plaintiffs’ proposed class definition seeks to weave together thousands of women in
hundreds of different job classifications and departments (and across various salary bands and
levels), each with different duties, qualifications, and experience. Plaintiffs have not identified
which employees they seek to compare on a class-wide basis. Nor have plaintiffs alleged any
facts supporting an inference that every woman performs equal or comparable work to a male
employee who is more highly compensated.
Moreover, even if plaintiffs somehow demonstrated that a wage difference exists for
every female employee at Nike’s world headquarters, Nike is entitled to show, for each person,
that any difference is based upon legitimate factors other than sex – again requiring a fact-
intensive assessment as to each individual’s education, experience, skills, and performance. The
Complaint, however, contains no specific allegations regarding the duties, work, skills, pay,
3 Amendments to ORS 652.220 enacted in 2017 do not become effective until January 1, 2019.
4 Or, under federal law, “is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a
system which measures earnings by quantity or quality of production; or (iv) a differential based
on any other factor other than sex.” 29 U.S.C. § 206(d)(1).
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experience, or qualifications of any female employee other than the four named plaintiffs (and
the sole opt-in plaintiff discussed in the Complaint).
A. Plaintiffs Fail To Identify The Relevant Comparators For Each Group Of
Allegedly Underpaid Women, Leaving Nike To Guess Which Men and
Women They Seek to Compare.
To establish a prima facie case under the Federal Equal Pay Act, plaintiffs must establish
(1) the employer paid different wages to an employee of the opposite sex, (2) for equal work on
jobs requiring equal skill, effort, and responsibility, and which (3) are performed under similar
working conditions. See Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974).
Similarly, the Oregon Equal Pay Act requires plaintiffs to show that they “perform[ed] work
comparable to that of male [comparator] and that they were paid less than male [comparator].”
Smith v. Bull Run School Dist., 80 Or. App. 226, 229 (1986) (emphasis added). Thus,
identification of the comparator pool is a foundational component of any Equal Pay Act case.
Plaintiffs’ Complaint, however, fails to identify which positions or employees they seek to
compare.
1. Plaintiffs have not identified the appropriate comparator pool for
their putative class.
On an Equal Pay Act claim, plaintiffs must establish comparator groups for the putative
class. To determine whether a male colleague is a comparator to any class member, a court must
first determine whether their jobs share a “‘common core of tasks,’” and then analyze “whether
any additional tasks required for one job but not the other make the two jobs substantially
different.” Allender v. Univ. of Portland, 689 F. Supp. 2d 1279 (2010) (citing Stanley v. Univ. of
S. Cal., 178 F.3d 1069, 1074 (9th Cir. 1999)); Bureau of Labor & Industries v. City of Roseburg,
75 Or. App. 306, 311 (1985) (“[The proper inquiry] focus[es] not on the qualifications,
background and experience of the persons who [hold] the comparison jobs, but on a comparison
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of the jobs themselves.”). Plaintiffs cannot rely on job titles alone to identify substantially
similar work. E.E.O.C. v. Md. Ins. Admin., 879 F.3d 114, 121 (4th Cir. 2018) (“sharing a job
title and a job description is not dispositive of this issue”). Rather, the actual job responsibilities
and skills determine a proper comparator. See Port Auth. of New York & New Jersey, 768 F.3d
at 249 (2d Cir. 2014) (affirming dismissal of Equal Pay Act claims brought on behalf of female
attorneys; “the EEOC’s failure to allege any facts concerning the attorneys’ actual job duties
deprives the Court of any basis from which to draw a reasonable inference that the attorneys
performed ‘equal work,’ the touchstone of an EPA claim.”) (emphasis added).
The Complaint provides no answer to basic questions about which male employees the
plaintiffs seek to compare with women in the putative class. Which groups of men do plaintiffs
contend performed equal or comparable work to the different groupings of women in the putative
class? Do they allege that women should be compared to men in the same job title and level? Or
do they allege that women should be compared to men in the same job family but at higher or
lower job levels? Or do they allege that women should be compared to men in completely
separate jobs altogether? The Complaint never specifies, yet Nike cannot even begin to defend
against the claims without knowing the alleged comparator groups.
Iqbal and Twombly teach that Nike need not guess about plaintiffs’ theories; plaintiffs
must allege specific facts from which Nike can clearly determine plaintiffs’ claims. See
E.E.O.C. v. Port Auth. of New York & New Jersey, 768 F.3d 247, 249 (2d Cir. 2014) (affirming
dismissal of Equal Pay Act claims brought on behalf of female attorneys based on bare assertion
that all female and male attorneys were proper comparators; plaintiffs must plead “sufficient
factual matter,” in order “to provide fair notice [to the defendant] of the bases for [the plaintiff’s]
claims”). Nor may plaintiffs use the discovery process as a fishing expedition to uncover the
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theories on which they ultimately choose to proceed. See Peak v. Topeka Hous. Auth., 78 F.R.D.
78, 84 (D. Kan. 1978) (granting motion to strike class allegations of discrimination; “We agree
with defendant’s contention that a complaint such as that before us should not be used as a mere
‘port from which to embark on a large scale fishing expedition.’ The Court knows from long
experience that the discovery requests propounded in employment discrimination cases filed by
plaintiff’s counsel are both indiscriminate and burdensome; the lack of any specificity in the
complaints in these cases is transformed into an excuse to demand documents and explanations
concerning all phases of a defendant’s employment practices, much of which is later shown to be
completely irrelevant to any class plaintiff could have hoped to represent.”).
2. Plaintiffs’ disparate allegations regarding their individual claims
highlight the absence of any common factual predicate for a class
action.
The named plaintiffs’ inconsistent theories on their own Equal Pay Act claims only
highlight the untenable nature of their class allegations. Not only do plaintiffs fail to identify any
common comparator pool, but every plaintiff points to a different smattering of male employees
as appropriate comparators to their individual situations. For example, plaintiff Cahill claims
that she was paid less “than a male Director on her Team who was doing substantially similar
work as she was doing.” Compl. ¶ 134. Cahill’s alleged comparator appears to be a male
employee working in her same job level (Director), although the complaint does not say whether
they shared a job title. Plaintiffs Johnston, Elizabeth, and Hender, on the other hand, allege that
they – unlike Cahill – should not be compared to men at the same job level. Johnston claims
that she should be compared to men in higher level jobs (U-Band vs. L-Band) and in two
different job titles she did not hold – Senior BSA and Lead BSA. Compl. ¶ 143. Similarly,
plaintiffs Elizabeth and Hender each argue that they were performing the work of – and therefore
should be compared with – men in higher job levels. Compl. ¶¶ 147 (“Nike should have made
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Ms. Elizabeth a Designer II because she did the work of a Designer II”); 151 (“Although Ms.
Hender’s title was Manufacturing/Process Engineer II, her duties and responsibilities were
substantially the same as a male Senior Process Engineer I . . .”).
The few opt-in notices filed to date are even more individualized. Opt-in plaintiff Cheng
appears to allege her comparator was a male in the same job code and level. See Cheng’s
Consent to Become Party Plaintiff in Collective Action ¶ 3 (Dkt. 3) (comparing herself to “the
male Nike employee who replaced me as the employee in charge of digital photography”). Opt-
in plaintiff Grieve, on the other hand, alleges that she should be compared both to men in the
same job level and in job levels lower than hers. See Grieve’s Consent to Become Party Plaintiff
in Collective Action ¶ 4 (Dkt. 35) (“Nike has refused to pay me what it paid my male colleague
who had the exact same job or even a job with a lower title.”).
The final three opt-in plaintiffs are the least informative, failing to even adequately plead
comparators for themselves. Opt-in plaintiff Phillips does not identify a single male allegedly
paid more than she, noting only, “During my time at Nike, on information and belief, I was paid
less than male Nike employees for substantially equal work.” See Phillips’ Consent to Become
Party Plaintiff in Collective Action ¶ 3 (Dkt. 2).5 Opt-in plaintiff Azavedo fails to allege any
comparators, or even that she was paid less than any male for substantially similar work. See
generally Azavedo’s Consent to Become Party Plaintiff in Collective Action (Dkt. 37). And opt-
in plaintiff Olson admits that no men performed substantially similar work throughout her entire
Nike employment. Compl. ¶ 157 (“Before Ms. Olson’s Nike employment ended, there were no
Senior Managers, other Managers, or Directors in World Headquarters Security.”).
5 See also Rose v. Goldman, Sachs & Co., 163 F. Supp. 2d 238, 241-243 (S.D.N.Y. 2001) (Equal
Pay Act claim dismissed because plaintiff’s allegation that “upon information and belief” she
received fewer raises and bonuses than comparators was “too conclusory to state a claim under
the Equal Pay Act . . .”) (emphasis in original).
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Plaintiffs claim every female class member at Nike’s headquarters is underpaid compared
to men – without exception – but do not plead any facts about which positions or employees they
seek to compare. To proceed as a class or collective action, plaintiffs must allege questions of
law or fact susceptible to common proof. But here, each individual plaintiff alleges a different
comparator group, or no comparator group at all. A putative pay equity class action cannot
proceed when the plaintiffs’ own Complaint demonstrates that this fundamental question calls
for an individualized analysis. Plaintiffs have not met even minimal pleading obligations to
support their class-wide pay equity claims.
B. Nike Is Entitled To Assert Individual Defenses With Respect To Each
Putative Class Member And Each Alleged Comparator.
Even if plaintiffs can identify appropriate comparators and establish a wage difference for
each class member, Nike will be entitled to assert affirmative defenses to explain any wage
differentials based on other legitimate factors with respect to each putative plaintiff. Corning
Glass Works v. Brennan, 417 U.S. 188, 196 (1974) (“The Act also establishes four exceptions –
three specific and one a general catchall provision – where different payment to employees of
opposite sexes ‘is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system
which measures earnings by quantity or quality of production; or (iv) a differential based on any
other factor other than sex.’”); ORS 652.220(2)(a)-(b) (no violation exists if “[p]ayment is made
pursuant to a seniority or merit system which does not discriminate on the basis of sex” or “[a]
differential in wages between employees is based in good faith on factors other than sex”). As
such, wage disparities between any two individuals could be explained by many different causes,
including performance, education, work experience, skills, resources, and institutional
knowledge.
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For example, Male1 may be paid more than Female1 because Male1 has an advanced
degree. Or Male2 may be paid more than Female2 because he has 10 additional years of relevant
experience. Importantly, Nike is entitled to this fact-based defense with respect to every single
putative class member. The individualized nature of the claims and dearth of factual allegations
demonstrate that plaintiffs have not alleged plausible class claims, as Twombly/Iqbal require.
See Kennedy, 50 Fed. App’x at 355 (dismissal appropriate where it is “plain enough from the
pleadings to determine whether the interests of the absent parties are fairly encompassed within
the named plaintiff’s claims.”) (citations and internal quotation marks omitted); Sams v. Yahoo!
Inc., 713 F.3d 1175, 1179 (9th Cir. 2013) (“[T]he assertion of an affirmative defense may be
considered properly on a motion to dismiss where the ‘allegations in the complaint suffice to
establish’ the defense.” (quoting Jones v. Bock, 549 U.S. 199, 215 (2007)).
C. Plaintiffs Fail To Identify How They Can Represent Women In Different Job
Titles, Levels, Families And Departments.
Finally, plaintiffs purport to represent nearly every salaried woman at Nike’s world
headquarters, spanning thousands of employees (with varying educational backgrounds,
qualifications, performance histories, and job functions), across numerous departments and
hundreds of job categories, covering various salary bands and salary levels. Yet, plaintiffs fail to
plead facts showing any overlap in their job duties, experience, or qualifications with those in
countless other positions in the putative class, which cover business areas as varied as Design,
Sports Marketing, Legal, Product Creation, Merchandising, and Communications. Despite the
recent addition of two new named plaintiffs, the Complaint reveals that plaintiffs’ combined
experience stretches into a mere handful of jobs allegedly covered by this lawsuit. During the
class period, plaintiff Cahill only held a Director position in North America Marketing, Digital.
Compl. ¶ 133. Plaintiff Johnston also worked in just one position during the statutory period –
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Intermediate Business Systems Analyst – without describing the business area or department for
the role. Compl. ¶ 138. Similarly, plaintiff Elizabeth has only held one position in an
unidentified department while a full-time Nike employee: Apparel Designer I. Compl. ¶ 146.
Lastly, plaintiff Hender, with the most diverse experience of any plaintiff, has held a total of two
positions – Manufacturing/Process Engineer II and Senior Process Engineer I. Compl. ¶¶ 151,
154. Collectively, the four plaintiffs have held just five of the hundreds of job titles
encompassed within the proposed class definition. Plaintiffs have not pled facts that plausibly
suggest that other women with whom they shared job titles had similar experiences, let alone that
their experiences were similar to the thousands of women in the hundreds of other job titles that
plaintiffs never held and know nothing about.
Plaintiffs’ conclusory recitation that Nike has common “policies” impacting pay does not
remedy this issue. See Port Auth. of New York & New Jersey, 768 F.3d at 258 (dismissing Equal
Pay Act claims where “the EEOC’s more particularized allegations – that attorneys had the same
job code; were evaluated according to the same broad criteria; were paid according to the same
‘maturity curve’; and were not limited to distinct legal divisions – at most demonstrate that Port
Authority attorneys were subject to the same human resources policies”). Whether or not such
policies exist, Equal Pay Act claims require facts demonstrating that women in the class perform
work comparable or equal to a comparator and that a pay differential exists. See Weinreb v.
Xerox Bus. Servs., LLC Health & Welfare Plan, 323 F. Supp. 3d 501, 519–20 (S.D.N.Y. 2018)
(“Given the complete absence of any factual allegations whatsoever relating to actual job content
or working conditions, the Court dismisses Plaintiffs’ EPA claims as a matter of law.”); Noel-
Batiste v. Virginia State Univ., No. 3:12CV00826-HEH, 2013 WL 499342, at *6 (E.D. Va. Feb.
7, 2013) (Equal Pay Act claim dismissed where “[p]laintiff [] made no reference to the skills,
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effort, and responsibilities required of her as an ‘Associate Professor’ or to those of the male
professors who she alleges receive a greater salary”). Plaintiffs allege that Nike “sets starting
pay and other compensation-related terms based, in part, on prior compensation,” and that this
affects pay levels, bonuses, performance ratings, promotional opportunities, salary increases, and
equity distributions. Compl. ¶¶ 6, 102, 103, 114 and 115. This argument, however, does not
salvage their class-wide claims Equal Pay Act claims. Even assuming, arguendo, that Nike
“attribute[ed] significant weight to prior compensation history” (Compl. ¶ 102), that does not
make it plausible that an entire class of women were underpaid compared to male employees
performing comparable work.
Plaintiffs’ reference to Rizo v. Yovino, 887 F.3d 453 (9th Cir. 2018), does not ameliorate
the Complaint’s lack of factual specificity. In Rizo, it was undisputed that the plaintiff
established a prima facie case under the Equal Pay Act – that she was paid less than men for
substantially equal work under similar working conditions. Id. at 460. That could not be further
from the truth here. Moreover, Rizo’s holding applied only to the defendant’s affirmative
defense – is an employee’s prior salary a “factor other than sex” sufficient to explain a wage
difference? The Rizo court did not consider, let alone hold, that a conclusory allegation
regarding use of starting pay can support class claims bereft of facts. Nor did it hold that
consideration of prior salary necessarily is forbidden. See id. at 461 (“We do not decide, for
example, whether or under what circumstances, past salary may play a role in the course of an
individualized salary negotiation.”).
For all of these reasons, plaintiffs have not met their burden under Twombly/Iqbal to
plead facts that make their class-wide Equal Pay Act claims plausible.
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IV. PLAINTIFFS FAIL TO ALLEGE ADEQUATE FACTS TO SUPPORT THEIR
CLASS-WIDE INTENTIONAL DISCRIMINATION CLAIMS.
As pled, plaintiffs’ intentional discrimination theory is the definition of a facially
unmanageable class claim.6 To establish a disparate treatment claim under Title VII or
ORS 659A.030, a showing of “discriminatory motive is critical.” Teamsters v. United States,
431 U.S. 324, 335 n.15 (1977) (analyzing Title VII discrimination claims), cited with approval in
School Dist. v. Mission Ins. Co., 58 Or. App. 692, 700 (1983) (analyzing state discrimination
claims).7 Yet plaintiffs fail to allege any class-wide common policy or practice of intentional
discrimination. Instead, plaintiffs’ intentional discrimination theory rests on (1) facially neutral
policies alleged to have a discriminatory effect, and (2) the named plaintiffs’ own unique
experiences, or anecdotal accounts garnered from others.8
Plaintiffs base both their disparate impact and disparate treatment claims on the same
alleged policies and practices: “starting salaries, Band Level, annual ratings, annual salary
increases, PSP Bonuses, equity distributions, promotions, job assignments, and a hostile work
environment.” Compl. ¶¶ 196, 207, 220, and 226. This is inherently inconsistent: disparate
6 It is unclear whether plaintiffs intend to plead a class-wide hostile work environment claim.
Hostile work environment does not appear as one of the six causes of action enumerated by
plaintiffs. Instead it is pled as one of the bases for plaintiffs’ Title VII and ORS 659A.030
disparate treatment and disparate impact claims. Compl. ¶¶ 196, 207, 220, and 226. However,
to the extent that plaintiffs purport to assert this claim, it has no factual support beyond
individual, anecdotal allegations. A class-wide harassment claim is equally implausible based on
the allegations in the Complaint because harassment also requires plaintiffs to establish that each
individual class members experienced actionable harassment “because of sex.” See Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (“Title VII does not prohibit all verbal
or physical harassment in the workplace; it is directed only at ‘discriminat[ion] . . . because of . .
. sex.’”) (alteration in original). 7 The Ninth Circuit “has held that the substantive analysis for Title VII and § 1981 claims also
applies to discrimination claims under O.R.S. §§ 659A.030(1)(a), (b).” Reynaga v. Roseburg
Forest Prods., 847 F.3d 678, 695 (9th Cir. 2017).
8 Indeed, many of plaintiffs’ factual allegations regarding disparate treatment come from third-
party allegations contained in news stories, of which the plaintiffs have no first-hand knowledge.
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impact claims “involve employment practices that are facially neutral in their treatment of
different groups but that in fact fall more harshly on one group than another and cannot be
justified by business necessity;” for disparate treatment claims, an employer must intentionally
“treat[] some people less favorably than others because of their race, color, religion, sex, or
national origin.” Teamsters, 431 U.S. 324, 335 n.15 (1977) (emphasis added).
Gender-neutral policies cannot ground a disparate treatment cause of action. Any other
conclusion would obliterate the distinction between disparate treatment and disparate impact.
See Raytheon Co. v. Hernandez, 540 U.S. 44, 55 (2003) (vacating and remanding appellate
decision that conflated disparate impact with disparate treatment analysis where neutral policy
established employer’s nondiscriminatory reason for its decision; “If petitioner did indeed apply
a neutral, generally applicable no-rehire policy in rejecting respondent’s application, petitioner’s
decision not to rehire respondent can, in no way, be said to have been motivated by respondent’s
disability.”). For instance, plaintiffs allege that Nike considered compensation history when
“setting starting salary and Band Level,” which, in turn, led to “smaller PSP Bonuses in addition
to having lower salaries and less access to equity distribution,” as well as lower annual ratings
and promotional opportunities. Compl. ¶ 102, 103, 114 and 115. In plaintiffs’ own words, a
single neutral policy (considering prior compensation) is the alleged cause of “Nike’s
disproportionate placement of women in lower Band Levels.” Compl. ¶ 103. While those
allegations may support a disparate impact theory, they do not state a disparate treatment claim.
Plaintiffs’ unsupported allegation that Nike knew its starting pay practices had a disparate
impact on women also does not convert their disparate impact claim into disparate treatment.
Wood v. City of San Diego, 678 F.3d 1075, 1081-82 (9th Cir. 2012) (dismissing disparate
treatment claim premised on neutral policy; “It is insufficient for a plaintiff alleging
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discrimination under the disparate treatment theory to show the employer was merely aware of
the adverse consequences the policy would have on a protected group.”; “Where, as here, a
plaintiff is challenging a facially neutral policy, there must be a specific allegation of
discriminatory intent.”) (citations and internal quotation marks omitted).
Plaintiffs’ remaining allegations of disparate treatment attack alleged biases of plaintiffs’
individual managers and supervisors – individualized questions not susceptible to class
treatment. For instance, Johnston claims that two male colleagues hired about the same time as
her were placed on a more highly paid team and promoted within one year, while she was
promoted after two years. Compl. ¶ 140. Hender claims that she was not given a password she
needed to do her job (and apparently claims that, because a male engineer allegedly refused to
provide it, that proves intentional sex discrimination). Compl. ¶ 90. These alleged personal
experiences cannot be extrapolated to a class of thousands. Bennett v. Nucor Corp., 656 F.3d
802, 816 (8th Cir. 2011) (class certification denied where plaintiffs’ evidence of discrimination
arose chiefly among workers in only one department of large plant, “so their observations do
little to advance a claim of commonality across the entire plant”). Indeed, each of plaintiffs’
specific allegations demonstrates the individualized nature of their claims. No class-wide
disparate treatment claims can be maintained on the facts pled in plaintiffs’ Complaint.
V. ALLOWING PLAINTIFFS’ DEFICIENT CLAIMS TO PROCEED WILL
INEVITABLY LEAD TO DISCOVERY ABUSE.
The Twombly/Iqbal pleading standard exists for good reason. As the court explained in
In re Text Messaging Antitrust Litig., 630 F.3d 622 (7th Cir. 2010) (Posner, J.):
Twombly . . . is designed to spare defendants the expense of
responding to bulky, burdensome discovery unless the complaint
provides enough information to enable an inference that the suit
has sufficient merit to warrant putting the defendant to the burden
of responding to at least a limited discovery demand. When a
district court . . . allows a complex case of extremely dubious merit
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to proceed, it bids fair to immerse the parties in the discovery
swamp . . . and by doing so create irrevocable as well as
unjustifiable harm to the defendant that only an immediate appeal
can avert.
Id. at 625-26; see also Myung Ga, Inc. v. Myung Ga of MD, Inc., No. DKC 10-3464, 2011 WL
3476828, at *3 (D. Md. Aug. 8, 2011) (“Every plaintiff, no doubt, would prefer to have access to
discovery before facing the test of a motion to dismiss. But here again, Plaintiff ignores one of
the central purposes of the plausibility standard: restraining unnecessary discovery.”).
Allowing plaintiffs to extrapolate their individual grievances on behalf of such a
remarkably disparate class, consisting of individuals employed in countless job codes, invites
discovery abuse. Nike should not be required to endure the thicket of discovery and other
proceedings that would necessarily result from the imprecise claims and characterization of the
“class” or “collective action” in this case.
VI. IN THE ALTERNATIVE, THE COURT SHOULD STRIKE PLAINTIFFS’
CLASS AND REPRESENTATIVE ALLEGATIONS.
Federal Rule of Civil Procedure 12(f) provides that a court “may strike from a pleading
an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R.
Civ. P. 12(f). “[T]he function of a 12(f) motion to strike is to avoid the expenditure of time and
money that must arise from litigating spurious issues by dispensing with those issues prior to
trial . . . .” Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983).
Like individual allegations, class and representative allegations “must at least be
plausible;” to the extent that they are not, they properly are subject to a motion to strike.
Edwards v. Oportun, Inc., 193 F. Supp. 3d 1096, 1100 (N.D. Cal. 2016); see Ott v. Mortg.
Investors Corp. of Ohio, Inc., 65 F. Supp. 3d 1046, 1062 (D. Or. 2014) (motion to strike
appropriate “when the class definition is obviously defective in some way”) (citations and
internal quotations omitted); Sanders v. Apple Inc., 672 F. Supp. 2d 978, 990 (N.D. Cal. 2009)
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(striking class claims; “Where the complaint demonstrates that a class action cannot be
maintained on the facts alleged, a defendant may move to strike class allegations prior to
discovery.”); Rasmussen v. Apple Inc., 27 F. Supp. 3d 1027, 1045-46 (N.D. Cal. 2014) (granting
motion to strike class definition in product defect action on ground that it included class
members who did not experience product defect); Ramirez v. Baxter Credit Union, No. 16-cv-
03765-SI, 2017 WL 1064991, at *7-8 (N.D. Cal. Mar. 21, 2017) (granting motion to strike class
allegations where proposed class period extended beyond limitations period).
Here, even if the Court were to find that plaintiffs have alleged sufficient factual material
to state one or more individual claims, the Court still should dismiss plaintiffs’ class and
representative claims or strike plaintiffs’ class and representative allegations in their entirety.
Plaintiffs cannot maintain a class or representative action on behalf of such a broad and disparate
class and representative group on the scant facts pled in the Complaint.
VII. CONCLUSION
Plaintiffs bring this putative class action on behalf of a disparate class consisting of
virtually every woman at Nike’s world headquarters – regardless of department, position,
supervisor, pay level, qualifications or anything else. They have pled no factual predicate that
warrants forcing Nike to litigate and endure discovery over every personnel and pay decision
related to this amorphous group. Accordingly, the Court should dismiss plaintiffs’ class claims
for violations of the Federal Equal Pay Act (First Cause of Action), the Oregon Equal Pay Act
(Fourth Cause of Action), and intentional discrimination in violation of Title VII (Third Cause of
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Action) and the Oregon Equality Act (Sixth Cause of Action). In the alternative, the Court
should strike the class and collective action allegations pertaining to these claims.
Dated: December 10, 2018 Respectfully submitted,
/s/ Felicia A. Davis
Daniel Prince, Cal. SB# 237112 (pro hac vice)
Zach P. Hutton, Cal. SB#234737 (pro hac vice)
Felicia A. Davis, Cal. SB# 266523 (pro hac vice)
PAUL HASTINGS LLP
515 South Flower Street, 25th Floor
Los Angeles, CA 90071-2228
Telephone: (213) 683-6000
Facsimile: (213) 627-0705
Amy Joseph Pedersen, OSB No. 853958
Kennon Scott, OSB No. 144280
STOEL RIVES LLP
760 SW Ninth Avenue, Suite 3000
Portland, OR 97205
Telephone: (503) 294-9408
Facsimile: (503) 220-2480
Attorneys for Defendant NIKE, INC.
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